• Lewis Waring

Protecting Prosecutors Against Officers' Revenge - Cole McClelland

The recent decision of Ontario (Attorney General) v. Clark (“Clark”) creates an interesting conversation around the relationship between the Crown and officers of the law. Specifically, Clark raises a question of whether the actions of Crown prosecutors can open them to civil liability to police officers. Curiously, this is a novel legal question. Two parties who traditionally exist cooperatively in the administration of justice finding themselves at odds over criminal proceedings is certainly a dramatic turn of events.


Officer violence leads to a stay and a reduced sentence



In Clark, Toronto police officers arrested two individuals suspected of armed robbery and forcible confinement. Before the trial, one of the accused filed an application for a stay the proceedings as well as an application to exclude the confession he made while under arrest. These applications were based on the first accused’s claim that the officers had beaten him during the arrest, causing him serious injury. The Assistant Crown Attorney and a senior Crown Attorney agreed that the confession would not be admissible as such, and, as there was a lack of supporting evidence without the confession, the charges against him were stayed.


The other accused was convicted of the charges laid but later filed an application for a stay of proceedings, also claiming that the officers assaulted him during the arrest. The Assistant Crown Attorney did not call on the officers to give evidence regarding this second claim, conceding before the court that the assaults occurred. The trial judge in Clark convicted the second accused but reduced his sentence, describing the assaults in detail and described the officers’ conduct as “reprehensible conduct” and “police brutality”. Those findings were later reported to the media. The Toronto Police Service Professional Standards Unit then conducted its own review of the allegations of misconduct made by the accused against the officers, concluding that the allegations could not be substantiated.


On appeal at the Ontario Court of Appeal


In the Court of Appeal, the court looked unfavourably on the officers’ conduct, stating that,

“…indeed, they have not done so to this day. The absence of any meaningful disciplinary measures is telling, in my view, because the inability or refusal of the police to muster a pointed response in the face of such unchallenged allegations of serious criminal conduct by state actors during a criminal investigation makes the case for a stay under the residual category all the more compelling.”


This was further reported to the media, drawing a significant amount of attention to the incident between the original accused and the officers. The officers then filed a lawsuit against the Attorney General, claiming that they had suffered irreparable harm and reputation damage due to the Crown attorney’s decision to not call on them. They filed the suit claiming the negligent prosecution had resulted in this harm, not fully investigating the issue of police brutality and leaving the officers without contest to the claims.


On appeal at the Supreme Court of Canada



The issue, then, before the Supreme Court of Canada was whether prosecutorial immunity, which exists to protect the Crown from liability in doing their duties, extends to officers of the law involved in the case. Should this not be found, it would then be decided if the officers have shown that there were all the essential elements of misfeasance in public office.

It was the finding of the Majority that Crown prosecutors are protected from liability, even from officers, in respect to how they handle a case, This is logical because if Crown prosecutors were made to be accountable to police officers, there would be significant issues with objectivity in their duties out of fear of civil action. While there certainly would be claims for misfeasance of duties were this not the case, the officers had made out that the ground for civil litigation were met. Nevertheless, prosecutorial immunity protected these legitimate grounds from being actionable.


Crown objectivity and police accountability


There are two lines of thought I would like to address in relation to Clark: Crown objectivity and police accountability. Beyond everything else, a Crown attorney’s obligations should consist solely of acting in the interests of Canadian society. The prosecutors in Clark are not the same “side” as the police, rather a separate element to the justice system which is to work hand in hand in the administration of justice. A Crown prosecutor must remain objective. Unlike a judge, were this case to be decided the other way and prosecutorial immunity to not protect attorneys from the police, what prosecutor would ever act in a way that might open them to the ire from law enforcement. I believe the decisions of the Crown attorneys in Clark were correct. Both the confessional evidence and finding of fact at appeal should be affected by the officer conduct. If anything, it would paint the Crown in a worse light if they had tried to argue the losing position on officer conduct.


Where this is largely an issue is how the public would then perceive the office of the prosecutor and the police. It would simply be fuel to the fire that there is little to no accountability for officers of the law who act beyond their legal duties. It would be implicit that the Crown would never contest or make motions that may paint officers in a bad light, lest they be then sued in turn. This would surely be a massive blow on the confidence in both the police and the office of the prosecutor in how they are capable of enacting justice.


I believe there is a fundamental issue when it comes to police accountability in regards to this situation. Much in the way that the public only receives bodycam footage right away if it paints the officer in a positive light, relying on an internal conduct review board as “proof” the officers are being defamed seems inherently corrupt. The police in Clark had utterly refused to cooperate in corroborating the stories around the alleged misconduct. Moreover, the police giving such a questionable internal investigation that the Court of Appeal put a spotlight on their poor accountability says volumes. This feels, in effect, like the police force covering for their officers and refusing to cooperate in a way that may call the officers’ conduct further into question. This would place an onus on the Crown to then cover for the officers, which is ridiculous. The allegations that it is the failure of the Crown attorneys that led to this situation, rather than it being poor police practice and use of force, seems like an attempt to use the Crown attorneys as scape goats and is specifically neglectful of officer accountability.


Necessity of protecting prosecutors from liability to police


Even if the Crown prosecutors had acted in a way that was especially flagrant in causing palpable harm to the officers in Clark, opening them to civil liability is inherently dangerous. Especially when talking about tactical decisions a Crown prosecutor may make in the proceedings of a case, we cannot have “revenge suits” from officers who would take distaste in prosecutorial decisions.

Check out the Robson Crim MLJ
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